26 February 2012

Part of what drew William Hodges to Harbor's Edge, a luxury retirement community overlooking the Norfolk waterfront, was the prospect of sharing meals with his wife and friends in the elegantly appointed dining hall.

Hodges, 82, lives in the nursing part of Harbor's Edge because health issues have left him paralyzed from the chest down. His wife, Betty, lives in an adjoining independent-living wing, in what residents call "the tower."

Hodges would ride his electronic wheelchair across the hallway that connects the two wings to share meals in the River Terrace dining hall.

But last May, Harbor's Edge instituted a policy that prohibited residents in the assisted-living and nursing-care sections from dining in River Terrace or any other dining facilities in the independent wing. Rather, they needed to eat in the dining hall of their own section.

That put an end to meals with his wife and friends in River Terrace, and to attending special functions in the independent dining hall at Christmas, the Fourth of July and other holidays. Gone, too, was the terrace celebration to watch the Parade of Sail during Harborfest.

Hodges knows a little about justice, having been a lawyer, state legislator and senior judge of the Court of Appeals of Virginia.

The change didn't sit right with him. He had enjoyed the ambience and camaraderie there.

"The dining hall was an inducement for me to come here, and I had a right to rely on it," said Hodges, whose wife must now go to the nursing section to eat with her husband.

He's not the only person who feels that way. The policy garnered the attention of some of the city's movers and shakers who live in Harbor's Edge, which developers pitched as Norfolk's answer to luxury retirement communities in Virginia Beach and other cities.

Commercial real estate developer Harvey Lindsay, who lives at Harbor's Edge with his wife and sat on its board at one time, sees the policy as mean-spirited: "At a time when we should be reaching out to people, comforting them, wanting to be with them, we're doing the reverse."

The controversy also puts a lens on a broader issue that has arisen as more people live longer, with a wider range of disabilities, in gated communities for senior citizens.

Andrew Blechman, who has written books about these communities - he calls them "senior utopias" - says they can pose a slippery slope: "Segregation breeds more segregation. When people are segregated they forget what they have in common. For some people, it's not enjoyable to dine with people who are ill. Not everyone wants to be reminded of the inevitable."

Last year, a group of Harbor's Edge residents and their adult children set about trying to reverse the policy. They thought management was trying to segregate sicker people to make the community more marketable or because some of the healthier residents didn't want to dine with them, assertions management has denied.

"I tell you, we are so mad," said Dorothy Evans, 86, who lives in assisted living and misses the dining hall in independent living where she saw residents from other areas in the community. "It's like being a second-class citizen, and we pay a pretty penny to be second-class."

The objectors started by approaching the residents' advisory board. The group says it was told the policy had been put in place to comply with the law.

They contacted a state ombudsman for long-term care, who could not find any statute that prohibited residents of one section of a facility from eating in another. Several other retirement communities in the region, including Westminster-Canterbury on Chesapeake Bay and Atlantic Shores in Virginia Beach and Lake Prince Woods in Suffolk, have no such ban.

The ombudsman held a meeting at the facility in October and tried to help residents work out a solution with management.

Facility administrators, though, stood by the policy.

Harbor's Edge is what's known as a "continuing-care retirement community." People pay an entrance fee to move into the independent-living section, and they must be in good enough health to care for themselves. They also pay a monthly fee. When they need more help, they are guaranteed a spot in assisted living or the nursing wing.

About 220 people live in the independent wing, and about 30 people in each of the other two sections.
C.A. "Neil" Volder III, developer and executive director of Harbor's Edge, said the dining room policy followed a risk assessment of the facility in 2011. Regulations in assisted-living and nursing areas require staff trained to observe people who might have difficulty swallowing or restricted diets, and to take action if they choke on food or become sick.

The independent-living dining hall, which Volder said grew busier as the wing approached capacity, does not have staff trained for that. Three choking incidents were reported there, he said, two involving the same person.

Volder said he became concerned about liability. He consulted several law firms that specialize in health care regulation - as well as the state's health, social services and attorney general's offices - before implementing the policy.

"We are not going to go against three law firms and state regulations," he said.

Volder said Harbor's Edge policies are in line with other continuing-care retirement communities. However, several others in the area lack such restrictive policies.

Atlantic Shores has dining facilities in each level of care. Executive director Eden Jones said people who move from independent to assisted-living or nursing units may still return to dine in the independent section, as long as they can do so safely.

Jones said she uses a case-by-case review rather than a blanket policy. Usually something can be worked out to address safety concerns and the comfort of other residents, she said.

"You don't want to degrade the dining experience for the others," Jones said. "We may want them to have an aide with them, but we have EMTs on staff 24/7 and the wait staff has CPR training. The bottom line is, anyone who dines here, I am liable for them."

Joani Latimer, the long-term-care ombudsman at the Virginia Association of Area Agencies on Aging, said it can get complicated because different parts of retirement communities operate under different regulatory agencies. For instance, the skilled-nursing section is regulated by the Virginia Department of Health, while assisted living is under the purview of the Virginia Department of Social Services.

Spokesmen from both entities say no regulations prohibit assisted-living or nursing residents from dining in an independent section. On the other hand, no statute guarantees such residents access either, said Erik Bodin, a director in the licensing division at the Virginia Department of Health.

Latimer has fielded complaints before about restrictions - usually enacted for safety reasons - on people who use wheelchairs and walkers.

"I don't see anything that prohibits what the residents there are asking for," Latimer said of Harbor's Edge. She said she thinks more could be done to balance safety concerns and residents' wishes.

Lindsay Bilisoly's parents paid a $580,000 entrance fee to move to Harbor's Edge, plus a monthly fee, expecting to have access to the dining hall and activities in the independent area even if they needed a higher level of care. His father now lives in the nursing wing. Bilisoly said that just as his father has the right to eat in restaurants outside the facility, he should be allowed to eat in the independent-living dining hall. Health department regulations requiring trained staff would not apply there any more than if he took his parents to a restaurant, Bilisoly said.

"Once I leave his floor, they do not have any regulatory authority," he said of the health department. "I have to sign a sheet, it's a disclaimer form. Then I can go right to the No Frill Grill or left to the main dining room."

In October, the group hired Oast & Hook, a firm that specializes in elder law, to represent them in trying to reverse the dining policy. Attorney Andrew Hook said he thinks the policy violates federal and state statutes regarding fair housing and the Americans with Disabilities Act.

"In some cases the effect of these policies is to prevent married couples, or good friends, from eating meals together or being together at some of the newly segregated activities, simply because they are in different categories of residency," he wrote in a statement of facts.

But Paul Gordon, the lawyer who represents Volder, said in an email that when the operator of the independent dining area also holds the license for the assisted-living and nursing facilities, "there is a real dilemma about whether it has a responsibility to its resident to provide a level of service that simply is not available in a dining room that is unlicensed and does not have care staff at hand. Another concern is that some residents with cognitive or eating disorders may be disruptive (e.g., gagging, vomiting, repeated spilling or splashing) to the point of severely interfering with the ability of other diners to quietly enjoy a meal without losing their appetites."

Where fair housing and disability laws are concerned, a facility must make "reasonable accommodations," according to Steve Maag, a lawyer at Leading-Age, a national association of not-for-profit senior communities. And that, he says, varies according to the person, the particulars of the dining hall and the contract.

Although Hook believed that his clients could make a case for discrimination, he told them they'd likely need to go to court to prove it, and the residents did not want to pay for a legal battle.

They said management had told them that policy changes were in the works, so they waited.

In December, management released a screening tool to serve as that "reasonable accommodation" that would allow some assisted-living residents to dine in independent living starting Jan. 3.

Only people who had once lived in independent living and had been transferred to assisted living could be screened. The three-page assessment tested their cognitive abilities, dietary restrictions, behavior and appropriateness of dress.

They had to have their doctor sign a statement saying they could dine safely without assistance. They had to sign a waiver of liability. They could not bring guests. Depending on their screening tool score, an assessment had to be done either every week or every month, and if anything about their health changed, another assessment had to be done.

"Assisted Living residents must be able to get to and from the IL dining room on time and without Harbor's Edge staff assistance," the policy read. "Assisted Living Residents may hire private assistance to be able to get to and from the IL dining room. Private duty nurses or companions will not be allowed to accompany the resident while dining."

The policy said that the dining room would not be open to assisted-living residents during high-volume times such as Sunday brunch, holiday meals, special event dinners or marketing events and parties.
Only one person applied to be screened, and passed. Eight others were eligible to apply but didn't.
For most of the policy objectors, the screening tool added insult to injury.

Bilisoly contacted New York Times reporter Paula Span, who writes a blog called "The New Old Age." Her article was published Feb. 9 with the headline: "Tables Reserved for the Healthiest."

Afterward, the objecting residents circulated another petition, asking management to reconsider: "Let us find a middle ground that will benefit our neighbors already affected and benefit our lives in the future."

Forty-one people signed it, including Jane Batten, widow of Frank Batten, the former chairman of Landmark Communications, predecessor to Landmark Media Enterprises LLC, which publishes The Virginian-Pilot.

By this time, another group of residents had become annoyed by the hubbub. They wrote a missive in January called "Residents response to concerns of dissident group," saying they supported the dining hall policy.

They said the controversy was costing Harbor's Edge money that could be better spent: "Unless curtailed, such conduct will ultimately shred the agreeable human fabric which, for these past five years, has contributed to our pleasant living herein."

Eight people signed that petition, including Arthur Diamonstein, a businessman and philanthropist, and resident Bobbi Andrews. "It seems to be a fair policy, and you have to have rules and regulations," Andrews said.

Volder said last week he is standing by the policy. He said only a small number of people are on either side of the controversy and that the majority of residents just want to live in peace:
"They say, 'This is sad, because it doesn't portray the real atmosphere here.' "

P. Lee Starkey and his wife moved into Harbor's Edge shortly after it opened in August 2006.

Both still live in the independent wing and dine there. But Starkey, 86, answers the question of why he's concerned about the policy by listing his medical conditions: rheumatoid arthritis, pulmonary fibrosis, neuropathy in both legs, osteoporosis, irregular heartbeat.

He wants to continue to use the dining room should he move to a higher level of care. He said he and his wife love living there: "I would not want to leave, but I want to see a wrong righted."

The Rev. Jean Bozeman, a Lutheran minister who lives in the independent wing, said she thinks it should be determined on a case-by-case basis.

"If I had something wrong with me where it wasn't appropriate for me to be in the dining room," she said, "then I should be told not to come until the issue is resolved. But I should be able to come back. This does not make sense, because we are all one community and we have to find a way not to segment it."

Andrew D. Blechman

LEISUREVILLE - Adventures in America's Retirement Utopias

Andrew D. Blechman is an award-winning journalist who has been a reporter for the Los Angeles Times and the Des Moines Register. His work has also appeared in Smithsonian Magazine, The New York Times, and the International Herald Tribune, among others. His first book, Pigeons: The Fascinating Saga of the World's most revered and reviled Bird, was widely praised in the media and even featured on CBS Sunday Morning. Pigeons, which is now available in paperback, was recently released in Australia and New Zealand.